In Myers v Southern Grampians SC (Red Dot) [2022] VCAT 695 the Victorian Civil and Administrative Tribunal (“the Tribunal”) considered the jurisdiction of the Tribunal in an application under Section 82(1) of the Planning and Environment Act (“the Act”). Section 82(1) relates to an objector making an appeal to the Tribunal to review a decision to grant a planning permit. In this case the Tribunal considered whether the matter was exempt from notice and review rights (also known as advertising and appeal rights) and whether this affected objectors’ appeals.
The case involved a planning permit application for use and development of the land for group accommodation and associated works. Council gave notice of the application, and three objections were received. Council subsequently determined to issue a Notice of Decision to grant a planning permit which was then appealed by objectors.
The site was affected by a Design and Development Overlay (DDO) control which included exemptions from notice and appeal.
Many planning permit triggers in Victoria’s planning schemes include exemptions from third party notice and review rights, meaning those permit triggers do not need to be notified and third parties do not have the right to appeal the decision.
During the hearing the question was raised whether the Tribunal had the jurisdiction to consider the DDO provisions, given the DDO included an exemption from third party notice and review rights and the appeal had been brought by objectors, not the applicant.
In this case, there were additional permit triggers under the Zone and other overlays which did not include third party exemptions to notice and review rights.
The Tribunal referred the question of whether or not submissions on the DDO provisions should be admissible, to a legal member, who subsequently made a ruling on this aspect. In summary the Tribunal found:
- the Tribunal has no jurisdiction to consider the application for review against the provisions of DDO6, where it is a section 82 review alone, given the DDO6 includes an exemption from third party notice and appeal rights; and
- it is a relevant consideration for the Tribunal to take into account the compliance with the DDO6 but it is beyond the Tribunal to independently consider whether the application for review complies with the DDO6. Further, this opinion also states that it is a matter for the Tribunal as to what weight to give to the decision of the council in it approving the proposal (by virtue of the Notice of Decision to Grant a Planning Permit), inclusive of its approval of the proposal under the DDO6
The Act requires the Responsible Authority to consider all objections which it has received, before making its decision. However, where the Act or the Planning Scheme does not require notice, the Responsible Authority is not required to consider an objection received on that matter.
Section 64(1) requires the Responsible Authority to give a copy of the decision to each objector with details about appealing to the Tribunal. However, where a planning scheme has exempted that permit in question from notice and review, the Responsible Authority is required only to give objectors a copy of the decision, so that they are informed of the decision, and not details about appeal rights or procedures. Where a planning scheme exempts an permit application from objectors’ appeal rights, objectors cannot lodge an appeal under that specific provision.
In addition, where an appeal is made by the permit applicant under a provision which includes an exemption from notice and review, an original objector cannot join that appeal as they would not have appeal rights.
It is not uncommon for a planning permit application to have multiple permit triggers, some of which are open for notice and review by 3rd parties, and some which are not. We recommend that practitioners review each of the triggering provisions within the relevant planning scheme to understand whether or not an exemption from notice and review applies.
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